A Step Forward: New Law Expands Government Liability

Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

Chinese citizens have had very limited legal remedies available to them for violations of their rights by government agencies and their personnel, but some were created by legislation in the 1990s as administrative law began to develop. China has recently expanded the rights of its citizens to obtain redress for harms caused by intentional or negligent conduct by government agencies. A small but significant step has been made in the right direction, with still a long way to go.

General statements about the liability of governmental units were set forth in the Constitution of 1982 and in subsequent legislation, but detailed legislation did not appear until the State Compensation Law (SCL) was enacted in 1994. On December 1, 2010, newly adopted amendments to the SCL came into effect. The impact of the new rules will be determined by the extent to which citizens are willing and able to rely on it in bringing agencies to court, and by the responses of the agencies to such lawsuits.

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The new law also affords Chinese citizens additional means of challenging administrative conduct by having courts applying statutes rather than a constitution enumerating citizens’ rights. At present, Chinese law does not permit courts to rely on the Chinese Constitution as the basis for finding violation of rights. However, a number of statutes regulating administrative conduct that have been adopted since 1990 do provide remedies, labeled by one scholar as “quasi-constitutional,” which are analogous to those reached in other nations in which courts can rely on their constitutions. The recent amendments to the SCL add to this body of law, and should benefit claimants seeking remedies.

China adopted the SCL in 1994 when it joined a worldwide legal trend by establishing legal rules for compensating victims of injuries caused by governmental acts (see Keith Hand, “Watching the Watchdog: China’s State Compensation Law as a Remedy for Prosecutorial Misconduct,” Pacific Rim Law & Policy Journal, vol. 9, No.1, 2000). Even before the amendments became effective, wrongful convictions attracted considerable media attention. In one recent case, a farmer who was imprisoned for 11 years after being wrongly convicted of murder (he had been tortured into confessing), received 650,000 yuan ($97,500) from local courts and police in compensation.

The recent amendments to the SCL include three major changes to the 1994 law:

1) Formerly, the SCL required victims to apply for compensation from the government department that caused loss or injury, and in some cases had to obtain written acknowledgement of violation from that department. The amended law now allows victims to apply directly for compensation either to a higher-level administrative unit or by filing a lawsuit. This, at least formally, prevents agencies from blocking access to compensation.

2) Formerly, too, recovery of damages was not allowed if the conduct of state personnel involved was challenged as negligent behavior. Under the amended law the act complained of need not be “illegal,” as long as that act violated the victim’s “legitimate rights and interests.” It thereby permits compensation for harm or damage caused by negligent behavior, according to an administrative law expert, Professor Ma Huaide of the China University of Politics and Law.

3) For the first time, the amended law also authorizes state compensation for “psychological injury,” although the term is not defined. The wrongly convicted farmer mentioned above, who was released after he signed an agreement to accept 650,000 yuan offered by the court and police, received an additional 120,000 yuan after he threatened to sue the local government for “mental distress.” It is impossible to predict how the courts will interpret that new language and concept.

Although the changes noted here are welcome, there is adequate room for additional expansion of the rights of victims of wrongful government actions. Professor Ma urges an increase in the amount of compensation that may be paid, noting that the amount for a wrongful detention is limited to 100 yuan ($15) per day, and compensation for wrongful death is only 20 times the claimant’s average annual income.

A recent case suggests that citizens may increasingly be inclined to sue government agencies under the SCL. Wang Peng, a librarian in a public library in Ningxia Province was detained by police for committing libel. After graduating from university in 2007, Wang wrote anonymous letters alleging that Ma Jingjing, his roommate and classmate, may have cheated in a civil service examination. According to a Chinese press report, the roommate “had a poor academic record but miraculously scored the highest” among 500 applicants. Ma’s parents are senior provincial officials.

Ma got the civil service job, and then Wang Peng denounced him for cheating. Ma reported Wang to the local District government and the Public Security Bureau detained him. A “public outcry” on the internet ensued, and after Wang had been held for eight days the Public Security Bureau released him and fired two officials for wrongful detention. It also offered Wang 1,000 yuan in compensation, based on pay that had been deducted by his employer for absence from work, but Wang’s lawyer and family are demanding 30,000 yuan “in line with state compensation law.”

On its face Wang’s claim seems to demand compensation far above the amount that can be authorized under the amended law, but invocation of the law for alleged violation of a citizen’s rights signals a welcome expansion of those rights. However, the law is too new and reported complaints too few to be able to assess the extent to which it will deter government illegality.

The amended SCL is noteworthy because it expands the possibility of controlling administrative conduct by statute. As already noted, under current Chinese law, the Constitution may not be relied on by the courts as a basis for challenging an alleged violation of citizen rights. However, Professor Xin He of Hong Kong University notes that the adoption during the 1990s of numerous new laws that strengthened administrative law and procedures has also enlarged the basis for controlling lower-level governments (see “Administrative Law as a Mechanism for Political Control in Contemporary China,” in Building Constitutionalism in China, edited by Stéphanie Balme and Michael W. Dowdle, 2009.) He cites the Administrative Litigation Law, which authorized suit by citizens alleging violation of their rights by government agencies under certain circumstances; the Administrative License Law, which established rules for granting, suspending and cancelling licenses to engage in various activities; and the Administrative Penalty Law, which clarified rules on the penalties that may be imposed by agencies. The amended SCL now strengthens this body of law.

The expanding body of administrative law, Professor Xin speculates, has stimulated interest in controlling administrative governance by courts applying legal standards. Although China formally rejects the American concept of controlling government by checks and balances, the enforcement of aministrative laws to protect citizen rights raises the possibility of “a distinctly Chinese version of constitutionalism.” What may be evolving is further control of administrative conduct by courts applying statutes rather than the Constitution, but reaching an analogous result.

It is too early to tell whether such an evolution will take place, but by enlarging citizens’ rights, the amendment of the SCL takes a welcome step in this direction.

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